State v. Marvin

• Decision Date: 04 March 1924
• Docket Number: 35838
• Citation: 197 N.W. 315,197 Iowa 443
• Parties: STATE OF IOWA, Appellee, v. WILBUR MARVIN, Appellant
• Court: Iowa Supreme Court

197 N.W. 315

197 Iowa 443

STATE OF IOWA, Appellee, v. WILBUR MARVIN, Appellant

No. 35838

Supreme Court of Iowa, Des Moines

March 4, 1924

Appeal from Poweshiek District Court.--D. W. HAMILTON, Judge.

DEFENDANT was indicted for the crime of lewdness, as defined by Section 4938-a, Code Supplement, 1913. Upon a plea of "not guilty," trial was had to a jury, and upon a verdict of "guilty," judgment was entered, in conformity to law. Defendant appeals.

Reversed.

W. C Rayburn, F. M. Bechly, Guy S. Calkins, and C. C. Putnam, for appellant.

Ben J Gibson, Attorney-general, and R. W. Boyd, County Attorney for appellee.

DE GRAFF, J. ARTHUR, C. J., STEVENS, and VERMILION, JJ., concur.

OPINION

DE GRAFF, J.

The instant indictment charges lewd, immoral, and lascivious acts with Dessie Roop, a girl under the age of thirteen years. The primary error relied upon for a reversal involves the ruling of the trial court in admitting evidence of other distinct, independent, and substantive acts of a similar nature, unrelated in time to the offense charged, and, if committed, were committed upon a different girl.

It appears that the State was permitted to show, over proper objections, certain lewd and lascivious acts committed by the defendant on a ten-year-old girl by the name of Lillian Kimble. On the day following its admission, the court, on its own motion, withdrew from the jury all of the testimony of the Kimble girl with reference to the improper conduct between the defendant and said girl, and the jury was instructed not to consider the testimony of said witness with reference to the acts of the defendant with said girl. If error was committed by the court in the admission of this testimony, was the error cured by withdrawing same from the consideration of the jury?

The indictment charged a crime in which the intent with which the act was done could not be innocent. It charged a crime in which not only the statutory intent is inferable, but every other intent is necessarily excluded. The intent inheres in the act itself. This testimony does not fall within the fairly well defined exception making admissible testimony of other similar offenses. The defendant sustained no relation to the prosecuting witness from which an innocent intent on his part could possibly be drawn. As said in State v. Weaver, 182 Iowa 921, 166 N.W. 379:

"The act was of such an immoral, lascivious, and indecent character as to conclusively show the debased and licentious condition of defendant's mind. From the facts shown, not only is the intent defined by the statute inferable, but every other intention is necessarily excluded."

Did the withdrawal of the questioned testimony from the consideration of the jury cure the error of its admission in the first instance? We think not, and the reason is obvious. The evidence would leave in the minds of the jurors the impression of the defendant's proneness to do such things, and the knowledge which the jury...